IN RE ANDERSON, W.C. No. 3-113-761 (3/12/98)


IN THE MATTER OF THE CLAIM OF KAY L. ANDERSON, Claimant, v. SUMMIT RIDGE WATER DISTRICT, Employer, and COLORADO COMPENSATION INSURANCE AUTHORITY, Insurer, Respondents.

W.C. Nos. 3-113-761 3-114-418Industrial Claim Appeals Office.
March 12, 1998

FINAL ORDER

The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which awarded future medical benefits and apportioned permanent total disability benefits. The ALJ also granted an offset for Social Security Disability (SSDI) benefits. We affirm in part, reverse in part and modify the order in part.

It is undisputed that the claimant suffered two compensable injuries while employed by the Summit Ridge Water District. The first injury occurred in 1993, and primarily affected the claimant’s knees. The claim for this injury is denominated as W.C. No. 3-114-418. The claimant suffered a subsequent injury in 1994, which primarily affected his back. The claim for this injury is denominated as W.C. No. 3-113-761. On November 25, 1996, the claimant reached maximum medical improvement (MMI) for both injuries.

The respondents filed a Final Admission of Liability dated February 13, 1997, in each claim. The admissions provided for the payment of permanent partial disability benefits commencing November 25, 1996, subject to a SSDI offset of $80.31 per week.

Thereafter, the claimant applied for an award of permanent total disability benefits and future medical benefits in accordance Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The claimant also contested the SSDI offset.

At the commencement the hearing before the ALJ, the respondents stipulated to the payment of permanent total disability benefits in W.C. No. 3-113-761 based upon the MMI date of November 25, 1996. However, the respondents requested apportionment of the permanent total benefits pursuant to §8-42-104(2), C.R.S. 1997. The respondents also agreed to provid Grover-type medical benefits.

Insofar as pertinent, the ALJ found that 60 percent of the claimant’s permanent total disability is due to the 1994 back injury and 40 percent is attributable to the 1993 knee injury. Therefore, the ALJ held the respondents liable for 60 percent of the claimant’s permanent total disability benefits. The ALJ also concluded that the respondents are entitled to a SSDI offset of $80.31 per week in accordance with § 8-42-103(1)(c)(I), C.R.S. 1997. Further, the ALJ granted an award of Grover-type medical benefits in W.C. No. 3-114-418.

I.
On appeal, the claimant contends, inter alia, that the ALJ’s findings of fact are insufficient to support the order for apportionment. We agree.

Section 8-42-104(2), provides that:

“In case there is a previous disability, the percentage of the entire disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury.”

Section 8-42-104(2) also provides that it applies only to the apportionment of permanent partial and permanent total disability benefits. Conversely, § 8-42-104(2), does not, by its own terms, apply to the apportionment of temporary disability.

Under the Workers’ Compensation Act, temporary disability ends and permanent disability, if any, begins at the time of MMI Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995) Nunnally v. Wal-Mart Stores, Inc., 943 P.2d 26 (Colo.App. 1996). This is true because the nature and degree of the claimant’s “permanent” disability is not ascertainable until his condition has stabilized, and all reasonable treatment designed to cure and improve the injury has been exhausted. Donald B. Murphy Contractors, Inc., v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo.App. 1995).

Section 8-42-104(2) expressly provides that apportionment is based upon the extent of disability “as it existed at the time of the subsequent injury.” Colorado Fuel and Iron Corp. v. Rhodes, 166 Colo. 82, 441 P.2d 652, 655 (1968). Furthermore, as stated by Professor Larson, one of the limitations on apportionment is that the “previous disability” is permanent in character. See A. Larson, Workers’ Compensation Law, § 59.32(h), (1997).

Therefore, we conclude that, in the context of § 8-42-104(2), the term “previous disability” refers to a condition which is “permanent” in nature at the time of the subsequent injury. As a result, the effects of a prior industrial injury do not constitute a “previous disability” unless the claimant attained MMI for the prior injury before the date of the subsequent injury. See Rumbaugh v. Workers’ Comp. App. Bd., 87 Cal App. 3d 907, 151 Cal Rpter 563 (1978) (where claimant suffered two successive industrial back injuries, which became permanent at about the same time neither was “previous” to the other for purposes of apportionment).

This conclusion is consistent with the Supreme Court’s interpretation of § 8-42-104(2) in Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). In Askew, the Supreme Court held that, when apportioning permanent partial disability benefits, “medical impairment” cannot be equated to “disability.” In so doing, the Askew court relied on the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised), (AMA Guides) for the proposition that “impairment” relates to an alteration of an individual’s health status as assessed by medical means, while “disability” pertains to a person’s ability to meet “personal, social or occupational demands,” and is assessed by non-medical means. Consequently, the Supreme Court held that, for purposes of awarding permanent partial disability benefits, a medical impairment rating may only be apportioned when it rises to the level of a “disability,” as defined by the AMA Guides.

The AMA Guides expressly recognize the distinction between “temporary” and “permanent” disabilities. See Ch. 1, Section 1.1. The AMA Guides provide that, for purposes of assigning a medical impairment rating, the “impairment” which is to be rated must be “static and well stabilized.” See Ch. 2, pp. 5-6. Thus, the AMA Guides do not contemplate apportionment between permanent and temporary medical conditions.

Admittedly, the existence of medical impairment is not conclusive of permanent total disability. To the contrary, permanent total disability is determined by a myriad of factors pertinent to the claimant’s ability to earn “any wages.” Section 8-40-201(16.5)(a), C.R.S. 1997; Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995).

However, in Baldwin Construction Inc., v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997), and Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997), the courts extended Askew to claims for permanent total disability. Consequently, the courts held that apportionment of permanent total disability between the effects of an industrial injury and a pre-existing condition is not appropriate unless the pre-existing condition constitutes a “disability” within the meaning of Askew.

Here, the undisputed facts reveal that the claimant’s “disability” from the 1993 injury was not permanent at the time of the 1994 injury. In fact, the parties stipulated that the claimant did not reach MMI for the 1993 injury until November 25, 1996. Under these circumstances, the undisputed facts compel the conclusion that 1993 industrial injury did not cause a “previous disability,” which was in existence at the time of the subsequent injury, for purposes of apportioning permanent total disability under § 8-42-104(2). Therefore, the ALJ’s findings do not support the order, and we modify the order to require payment of permanent total disability benefits without apportionment.

As a result of our disposition we need not address the claimant’s remaining arguments on the issue of apportionment. Therefore, we have not considered whether the ALJ erroneously applied the burden of proof. Nor have we considered the claimant’s contention that the evidence is insufficient to support a finding that the 1993 injury caused 40 percent of the claimant’s permanent total disability.

II.
Next, the claimant contends that the ALJ’s order is legally insufficient because it does not specify the amount and payment method for the permanent total disability benefits. We disagree.

Although the ALJ’s order is not a model of clarity, it adopted the respondents’ stipulation to pay permanent total disability benefits in W.C. No. 3-113-761, commencing November 25, 1996. Furthermore, the record reflects that the claimant’s permanent total disability rate is undisputed. The claimant agrees with the respondents’ Final Admission of Liability insofar as it lists the claimant’s temporary total disability rate as $400 per week. The claimant also expressly acknowledges that permanent total disability benefits are paid at the claimant’s temporary total disability rate (sixty-six and two-thirds percent of the claimant’s average weekly wage). Sections 8-42-105(1) 8-42-111(1), C.R.S. 1997. Therefore, the parties agree that the claimant is entitled to permanent total disability benefits at the rate of $400 per week.

Moreover, the claimant concedes that the respondents are entitled to a SSDI offset of $80.31 per week. Therefore, as modified, the ALJ’s order inherently requires the respondents to pay permanent total disability benefits at the rate of $400 per week commencing November 25, 1996, subject to an SSDI offset of $80.31 per week.

III.
Nevertheless, we agree with the claimant that the ALJ erred insofar as he granted an SSDI offset against permanent partial disability benefits. Consequently, we reverse that portion of the ALJ’s order.

Section 8-42-103(1)(c)(I) provides that where the claimant receives SSDI the “aggregate benefits payable” for permanent partial disability and permanent total disability shall be reduced, “but not below zero, to an amount equal as nearly as practical to one-half” of the SSDI benefit. Accordingly, the applicable offset is determined by the “aggregate” amount of benefits “payable” to the claimant. See Hetherington v. Aspen Leaf Builders Supply, Inc., W.C. No. 3-058-466 (May 22, 1997).

Because permanent partial disability and permanent total disability benefits compensate for the same future loss of earning capacity, a claimant may not receive contemporaneous permanent partial and permanent total disability benefits. Waymire v. Industrial Claim Appeals Office, 924 P.2d 1168 (Colo.App. 1996) Kehm v. Continential Grain, 756 P.2d 381 (Colo.App. 1987). I Kehm, the claimant suffered successive industrial injuries which combined to render him permanently and totally disabled. The court held that the claimant could not receive permanent partial disability benefits for the second injury. However, the claimant was entitled to permanent partial disability benefits for the first injury from the date of MMI until the date the claimant was declared permanently, totally disabled. Thus, Kehm stands for the proposition that a claimant may only retain permanent partial disability benefits which are due and payable prior to the date he is declared permanently, totally disabled. See also, National Fruit Product v. Crespin, ___ P.2d ___ (Colo.App. No. 97CA0150, September 18, 1997) cert. denied, February 23, 1998 97SC831.

Here, unlike the facts in Kehm, the claimant became permanently and totally disabled on the same date he reached MMI for both industrial injuries. Under these circumstances no permanent partial disability benefits were “payable” to the claimant prior to being entitled to permanent total disability benefits. Cf. Nunnally v. Wal-Mart Stores, Inc., supra (no permanent partial disability benefits payable to dependents where decedent died prior to reaching MMI). Consequently, there are no permanent partial disability benefits which are subject to an SSDI offset. Instead, the only benefits which are subject to the SSDI offset are the permanent total disability benefits of $400 per week.

III.
Lastly, the claimant contends that the respondents stipulated to the payment of Grover-type medical benefits in both claims including treatment for both knees, his back, stomach problems and depression. Therefore, he argues that the ALJ erroneously limited the award of future medical benefits to W.C. No. 3-114-418.

The respondents concede the claimant’s argument and agree that the ALJ should have required them to provide future medical benefits in both claims. We modify the ALJ’s order accordingly.

IT IS THEREFORE ORDERED that the ALJ’s order dated September 19, 1997, is modified to disallow the respondents’ request for the apportionment of permanent total disability benefits, and the respondents are ordered to pay 100 percent of the claimant’s permanent total disability benefits.

IT IS FURTHER ORDERED that the ALJ’s order is set aside insofar as it grants an SSDI offset for permanent partial disability benefits.

IT IS FURTHER ORDERED that the ALJ’s order is modified to provide that the respondents are liable for future medical care which is reasonable and necessary to cure and relieve the effects of industrial injuries including treatment for both knees, the claimant’s back, depression and stomach problems. In all other respects the ALJ’s order is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. Dean

NOTICE

This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.

Copies of this decision were mailed March 12, 1998 to the following parties:

Kay L. Anderson, 14608 C. R. 21, Cortez, CO 81321

Summit Ridge Water District, 15453 C. R. 33, Mancos, CO 81328

Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail

Bethiah Beale Crane, Esq., 575 E. College Dr., Durango, CO 81301 (For Claimant)

By: _________________________________